Sec 903

"When a contract is for delivery of goods, the goods delivered must correspond in quality with the terms of the coutract.5 As has been already seen, when goods are warranted to be of a particular quality, the warranty, whether express or implied, can be enforced in a suit for damages;6 and when the contract was induced by misrepresentation or fraud, it can be rescinded by the party imposed upon.7 Rescission, also, as we have seen, may be granted on failure in part performance.8 The question of implied warranty, as has also been seen, depends upon the facts in each particular case.1 Error as to quality, also, does not sustain rescission of a contract, though misrepresentation in this respect will found an action for damages.2 But when a contract calls for an article to effect a particular physical purpose, and the article is from its generic character not fitted for such purpose, then there is no concurrence of minds as to the particular thing, and the article, being unfitted for the purpose, can be returned. When the question is one susceptible of exact determination, and when it can be said that a thing is either absolutely fit or absolutely unfit, then if a party buys a thing that is absolutely unfit under the impression, fostered by the other side, that it is fit, there is no concurrence of minds as to one and the same thing. In such cases the bargain may be repudiated, and the article returned.3 A contract never was made, and there is nothing existing between the parties binding the receiver to keep the article.4 It is otherwise as to mere failure in quality.5

Article not answering description may be returned.

1 Bartol, C. J., Baltimore Build. Co. V. Smith, 54 Md. 203; citing Stebbins V. Eddy, 4 Mason, 419; Jones V. Plater, 2 Gill, 128; Stull V. Hurtt, 9 Gill, 446; Hall V. Mayhew, 15 Md. 551; Slothower V. Gordon, 23 Md. 9; Tyson V. Har-disty, 29 Md. 305.

2 Bartol, C. J., ut supra. A vendor, in a Vermont case in 1880, on a sale of certain lots of ground, told the vendee in good faith that the lots contained 100 acres each; and in the deed it was recited that "said lots supposed to contain one hundred acres each, more or less." In two of the lots it was found, on survey, that there was a material deficiency. It was held that the vendee was entitled to deduct, in paying the purchase money, the value of the deficiency. Darling V. Osborne, 51 Vt. 148; see Heath V. Pratt, 51 Vt. 238.

3 Noble V. Googins, 99 Mass. 231; Belknap V. Sealey, 2 Duer, 579; Ketchum V. Stout, 20 Ohio, 455. See supra, sec 293, 898; infra, sec 919.

4 Ibid. See Quesnel V. Woodlief, 2 Hen. & M. 173.

5 Supra, sec 221-2; Benj. on Sales, 3d Am. ed. sec 657, 661; Crane V. Roberts, 5 Greenl. 419; Goss V. Turner, 21 Vt. 437; Gaylord Man. Co. V. Allen, 53 N. Y. 518; Hyatt V. Boyle, 5 Gill & J. 110; Merriam V. Field, 24 Wis. 640.

6 Supra, sec 221 et seq. 7 Supra, sec 213, 282. 8 Supra, sec 293; infra, sec 919.